60 Cal.2d 378, 7428, People v. Parham
|Citation:||60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001|
|Opinion Judge:|| Traynor|
|Party Name:||People v. Parham|
|Attorney:|| Paul Robbins, under appointment by the Supreme Court, for Defendant and Appellant.  Stanley Mosk, Attorney General, John S. McInerny, Eric Collins and Albert W. Harris, Jr., Deputy Attorneys General, for Plaintiff and Respondent.|
|Case Date:||September 12, 1963|
|Court:||Supreme Court of California|
Cal.2d 386Rehearing Denied Oct. 16, 1963.
Paul Robbins, Oakland, under appointment by the Supreme Court, for defendant and appellant.
Stanley Mosk, Atty. Gen., John S. McInerny, Eric Collins and Albert W. Harris, Jr., Deputy Attys. Gen., for plaintiff and respondent.
Defendant was convicted on three counts of first degree robbery. (Pen.Code, § 211a.) He appeals from the judgment and from the order denying his motion for a new trial. The appeal from the order denying a new trial is dismissed. (Pen.Code, § 1237.)
Defendant contends that he was denied the right to inspect the signed statements of several witnesses and therefore was denied a fair trial, that he was placed in an improperly conducted lineup and therefore his identification by several witnesses was unreliable and prejudicial as a matter of law, that he was arrested without probable cause and therefore the search incident to his arrest was unreasonable, and that when he was arrested the police forced evidence from his mouth by unconstitutional methods.
Defendant was arrested on July 21, 1961 and on the same day was placed with five other men in a police lineup at the Berkeley Police Station. During the lineup, each man in turn tried on defendant's hat and coat. After observing the lineup several witnesses of the three bank robberies for which defendant was convicted identified defendant as the robber. These witnesses also identified defendant at the trial. Defendant contends that his hat and coat did not fit any of the other men in the lineup and that therefore the witnesses' identification of him was unreliable and prejudicial. This contention is without merit. The manner in which the lineup was conducted affects only the weight of the witnesses' testimony, not its admissibility. The witnesses were thoroughly cross-examined concerning the lineup. It was the jury's function to consider the circumstances of the lineup in weighing the witnesses' testimony. The jury's implied finding that identity was established is supported by the evidence.
At the trial most of the identifying witnesses testified that after the lineup they gave signed statements to agents of the Federal Bureau of Investigation. Defendant moved for production of the statements. The prosecution responded that the statements were not available to it. Inspector Young of the Berkeley Police was present when the witnesses were interviewed by the F.B.I. and took notes of the interviews but did not take signed statements. Defendant was given a copy of Inspector Young's notes and also the statement of one identifying witness taken by the Berkeley Police.
In chambers the prosecutor stated that he had been permitted to examine the statements taken by the F.B.I., that he had tried to obtain the statements but that the F.B.I. had
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rejected his request, and that he did not have the statements in his possession and no longer had access to them. Upon the trial court's suggestion defendant then obtained a subpoena duces tecum directing Special Agent Buchanan of the F.B.I. to appear with the investigative file on the bank robberies. Agent Buchanan appeared with an assistant United States attorney who advised the court that Agent Buchanan could not produce the investigative file because of order No. 3229 of the Attorney General of the United States. Agent Buchanan testified that he had delivered the file to the assistant United States Attorney and that he could not testify concerning the contents of the file because of order No. 3229. Defendant's motion that Agent Buchanan be held in contempt was denied. The court also denied defendant's subsequent motion to strike the testimony of all witnesses whose signed statements had not been produced.
Order No. 3229 compelled Agent Buchanan to refuse to produce the F.B.I. file. 1 That order is valid and has the force of federal law. (United States ex rel. Touhy v. Ragen, 340 U.S. 432, 71 S.Ct. 416, 95 L.Ed. 417; Jackson v. Allen Industries, Inc., 6 Cir., 250 F.2d 629.) The trial court was therefore bound by the executive order and properly refused to hold Agent Buchanan in contempt. (See Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846; Appeal of United States Securities & Exchange Comm., 6 Cir., 226 F.2d 501, 516-520; Ex parte Sackett, 9 Cir., 74 F.2d 922; In re Valecia Condensed Milk Co., 7 Cir., 240 F. 310; Stegall v. Thurman, D.C., 175 F. 813; In re Weeks, D.C., 82 F. 729; In re Huttman, D.C., 70 F. 699; Hubbard v. Southern Ry. Co., D.C., 179 F.Supp. 244.)
Defendant contends that because the signed statements were not produced he was deprived of a fair trial by the denial of his motion to strike the witnesses' testimony. Had the witnesses' statements been in the possession of the prosecution
an order to produce would have been proper. (People v. Estrada, 54 Cal.2d 713, 716, 7 Cal.Rptr. 897; People v. Chapman, 52 Cal.2d 95, 98-99; People v. Riser, 47 Cal.2d 566, 585-588.) Moreover, had defendant been prosecuted under federal law the statements could have been produced under the Jencks Act. (18 U.S.C.A. § 3500.) It does not follow, however, that the use of the witnesses' testimony even though their prior statements were unavailable deprived defendant of a fair trial. The prosecution die not withhold the statements, but on the contrary made every effort to obtain them from the F.B.I. The prosecution cannot be penalized because those efforts failed. The prosecution is not penalized if, through no fault of state officials, a material witness for the defense is unavailable at trial. (People v. Wade, 118 Cal. 672, 673; People v. Williams, 168 Cal.App.2d 624, 626-627; see People v. Collins, 195 Cal. 325, 333.) It does not appear that the statements were unavailable because of any improper activity by state officials. The police were under no compulsion to take statements from the witnesses. (See People v. Tuthill, 31 Cal.2d 92, 97-98.) There is nothing to show that the police conspired with the federal agents to deprive defendant of the statements. The prosecution was therefore entitled to use the testimony of the witnesses even though their signed statements were unavailable.
The evidence concerning defendant's arrest shows that while on patrol on the afternoon of Friday, July 21, 1961 Officer Donovan of the...
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